18jun19 – China holds Panatag, but no one owns it

POSTSCRIPT / June 19, 2018 / Tuesday

China holds Panatag, but no one owns it

By FEDERICO D. PASCUAL JR.

LAYMEN seeing aerial shots of Scarborough (Panatag) shoal off Zambales, with its lagoon walled in by what look like reefs with a hint of vegetation, are often surprised to know that the disputed 150-square-kilometer maritime feature is legally just a “rock.”

The shoal is a rock, according to the Permanent Court of Arbitration at The Hague in its award in July 2016 on submissions filed by the Philippines questioning aggressive moves of China in the West Philippine Sea.

Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS) upon which the PCA ruling was based provides that “rocks … cannot sustain human habitation or economic life of their own.” As such, Panatag has no Exclusive Economic Zone or Continental Shelf.

Filipinos who thought that the Philippines “won it all” at The Hague are wont to ask why the tribunal did not rule that Panatag – just 120 nautical miles from Luzon and 450 nm from the nearest Chinese land mass – be administered by Manila.

The shoal, Huángyán Dǎo to the Chinese, is in fact now controlled by China, with Filipinos merely being allowed by China’s Coast Guard to fish there and, sometimes, made to surrender part of their choice catch.

The PCA ruling did not say which nation owns Panatag, merely ordering that it should continue to be the common fishing ground of neighbors, including Chinese and Filipinos. We have been reporting this since 2016!

The tribunal did not resolve the sovereign question of ownership or possession, not because the Philippines did/does not own the “rock,” but because the PCA was not the proper court to decide the issue. Besides, the Philippines did not ask for such a determination.

What are the consequences of the declaration that Panatag is a “rock”? We asked lawyer Mario E. Valderrama, founder and first president (now president emeritus) of the Philippine Institute of Arbitrators (PIArb). He said:

“A ‘rock’ is not part of the sea. It could be acquired. And one of the modes of acquisition is uncontested possession in the concept of an owner for a certain period of time. In the present case, until such time that the international community would recognize the sovereignty of the possessor over the territory.

“It may be that Scarborough is within the Philippine Exclusive Economic Zone. It is not, however, part of the Philippine EEZ.

“China as possessor can, therefore, validly maintain its garrison in Scarborough, at least until the time when the issue of ownership was decided against China. Resolution of that issue could take an eternity.

“In the meantime, the Philippines can protest and protest whenever necessary, whether it be done ‘loudly’ or ‘silently,’ in order to preserve its claim.

“But, at the same time, the Philippines has to face reality. More so as it initiated the arbitration that resulted to, among others, the declaration that Scarborough is a ‘rock.’”

• ‘New case vs China risky, useless’

VALDERRAMA went on to comment on reports that acting Chief Justice Antonio Carpio suggested that the Philippines initiate another arbitration against China.

“That is a very dangerous, and at the same time useless, move,” Valderrama said. He added:

“The concepts of res judicata (what has been decided can no longer be relitigated), immutability of a final judgment (right or wrong, a final judgment can no longer be changed) and stare decisis (decide a case in accordance with precedents) are of doubtful application in arbitration.

“That is so because there is no hierarchy of arbitral tribunals. Each and every arbitral tribunal is infallible as to the merits of the case before it.

“That is one of the reasons why consent to arbitrate is indispensable — the basic agreement is to abide by the decision of the tribunal, whether that decision be right or wrong.

“In commercial arbitration the counterbalance are the so-called grounds to challenge awards, which have nothing to do with the merits. In state-to-state arbitration the counterbalance is the lack of any enforcement authority.

“On the point, while as a Filipino I welcome the traditional fishing rights in Scarborough ruling, still I doubt if the ruling has any statutory support in UNCLOS. Anyway, the issue would necessarily end up being reopened. Just as the jurisdictional issues may also be reopened.

“The decision or award may go either way. And, on the assumption that the Philippines would win, how will Manila enforce the award?”

• Address reasons why there are ‘tambay’

THERE must be a better way of communicating instructions of President Rodrigo Duterte without an assortment of officials having to come in after him to explain what he wanted to say.

Take the President’s order to the police to round up neighborhood “istambay.” The instruction made off the cuff had to be interpreted by his spokesman, the national police chief and an array of other officials.

What exactly is “istambay”? Its sounding like “stand by” suggests that it may refer to those who loiter needlessly or stand idly by – which brings up questions like what’s illegal with staying in place for a time?

Is it the act or the place and/or the time that makes loitering or staying put a peace and order violation? What’s the difference between walking in the neighborhood and in the mall, or in the park?

The better question is “Why do people make tambay?” Is it because many of them are jobless? Or we lack public places for safe and healthy relaxation? Why are there more of the poor who make tambay?

One Comment

China’s claim of ownership over Scarborough is based not based on its “uncontested possession in concept of owner” but rather on its claim of having territorial sovereignty over all areas inside the ‘nine-dash line,’ which, to be sure, the Permanent Court of Arbitration has ruled as invalid because it has no legal basis under international law. Hence, China’s present possession of Scarborough is based not on a legal right under international law but on imposition by military might.

Since time immemorial, Filipino fishermen have been fishing in Scarborough unchallenged and undisturbed by any country,much less by China. Historically, therefore, there is no basis for anyone to say that China has been in “uncontested possession in the concept of owner” of Scarborough. The first time Filipino fishermen were driven away from Panatag by the Chinese was during the stand-off between the Chinese Coast Guard and the Philippine Coast Guard sometime before the commencement of the arbitration by the Philippines against China.

In fact, the Permanent Court of Arbitration has ruled that Scarborough is a common fishing ground of neighbors, including Filipinos and Chinese. If Scarborough is a common fishing ground of neighboring countries, it necessarily follows that not one country, for example, China, can build a garrison on Panatag and drive away the fishermen from other countries, including those from the Philippines. It would appear silly, therefore, for the Professor to say that “China as possessor can, therefore, validly maintain its garrison in Scarborough” and, in effect, implying that China can lawfully drive away Filipino fishermen, allegedly “until the time when the issue of ownership is decided against China.”

Since the Philippines does not have the military might to confront the Chinese Coast Guard (and even if it had, its Constitution renounces war as an instrument of national policy), the Philippines remedy to protect its interest in Scarborough as a”common fishing ground” is to seek peaceful relief pursuant to international law, either through the intervention of the United Nations or, as proposed by Chief Justice Antonio Carpio, through arbitration against China. Chief Justice Carpio is concededly an expert on the legal issues involved in the South China Sea dispute between the Philippine and China considering his extensive studies and research on the matter since the beginning of the problem and his discussions and exchange of legal opinions with the Philippines’ foreign lawyers who undoubtedly are among the best in international arbitration. It is better to listen to the advice of Chief Justice Carpio, an expert, rather to a kibitzer who has no accountability for the errors of his unsolicited advice.

I will appreciate if could publish my comment since your readers are entitled to know the errors of Professor Valderrama which you have published in your column. Thank You.